Wilson v. Tye

• Decision Date: 04 June 1907
• Parties: WILSON v. TYE.
• Court: Kentucky Court of Appeals

102 S.W. 856

126 Ky. 34

WILSON v. TYE.

Court of Appeals of Kentucky.

June 4, 1907

Appeal from Circuit Court, Whitley County.

"To be officially reported."

Action by C. S. Wilson against Rachel Tye. Judgment of dismissal and plaintiff appeals. Affirmed.

See 92 S.W. 295.

Johnson & Snyder, for appellant.

Tye &amp Denham, for appellee.

SETTLE J.

The parties of this action were opposing candidates for the office of superintendent of common schools for Whitley county, at the November election, 1905. Appellee was elected to the office over appellant by a majority of several hundred votes, and was duly awarded the certificate of election. Thereafter appellant, claiming to have been elected himself to the office, contested appellee's right thereto by suit in the Whitley circuit court. The contest was decided by that court in appellee's favor and on the appeal prosecuted by appellant from that judgment it was by this court affirmed. Wilson v. Tye, 92 S.W. 295, 29 Ky. Law Rep. 71. Pending the appeal this action was instituted by appellant in the court below to recover of appellee the office in question upon the ground that she is a usurper; it being averred in the petition that at the time of her election, when she gave bond, took the oath of office, and entered upon the performance of its duties, she was ineligible and disqualified under the law to be elected to or hold the same first, because of her sex; second, because she was then under the age of 24 years. The appellant's alleged right to the office is based by the petition upon the ground that the election of appellee and her induction into the office being void, he had and yet has the right under the statute to remain in possession of the office and to perform its duties until a successor is duly elected. Appellee answered traversing the affirmative matter of the petition, and alleging that the question of her eligibility to the office in controversy was raised by appellant in the action contesting the election, and that, the decision of the contest having been adverse to his contention, it constitutes a bar and estoppel to his right to rely upon the same matter in the case at bar; furthermore, that appellant after she took charge of the office of superintendent of common schools for Whitley county, by virtue of her election thereto, voluntarily surrendered to her the office and acquiesced in the action of the state superintendent of public instruction in recognizing her as the lawful incumbent thereof, which acts and conduct of appellant were also pleaded by way of estoppel. The court below upon the hearing entered judgment, dismissing appellant's petition, and of that judgment he now complains.

The plea in bar and that as to the first matter of estoppel are not available, because this court held that the question of appellee's alleged ineligibility upon which both pleas are predicated was not up for decision in the contested election case and refused to pass on it. Section 483, Civ Code Prac., provides: "If a person usurp an office or franchise, the person entitled thereto, or the commonwealth, may prevent the usurpation by an ordinary action." Section 484 provides: "It shall be the duty of the several commonwealth's attorneys to institute the action mentioned in this chapter against usurpers of county offices or franchises, if no other person be entitled thereto, or if the person entitled fail to institute the same during three months after the usurpation." Section 485 confers upon the Attorney General authority to institute actions for usurpation of other than county offices or franchises, and section 486 declares who shall be deemed usurpers. Section 487 provides: "A person adjudged to have usurped an office or franchise shall be deprived thereof by the judgment of the court, and the person adjudged entitled thereto shall be placed in possession thereof, but no one shall be adjudged entitled thereto unless the action be instituted by him. * * *" It is plainly the meaning of the section, supra, that one in possession of an office, though he be a usurper, cannot be deprived of it at the suit of another claimant of the same office, unless the latter shows himself entitled thereto. On the other hand, a mere usurper may be deprived of an office in an action in the name of the commonwealth brought by the commonwealth's attorney, if it be a county office, or by the Attorney General if other than a county office, though there should be no other claimant for it, and though the effect of ousting the usurper would be to create a vacancy in the office. In Tillman v. Otter, 93 Ky. 600, 20 S.W. 1036, 29 L. R. A. 110, it was held that in an action by the commonwealth for usurpation of office, the burden is on the defendant to show by what authority he holds the office,...